UMich 'chilling' speech policies back in federal court

A federal appeals court has overruled another court’s ruling in a free speech lawsuit against the University of Michigan. 

After the East Michigan District court declined to provide an injunction against UMich for its “Bias Response Team,” the U.S. Sixth Circuit Court of Appeals ordered the U.S. District Court to reconsider the case, stating in its opinion that there is evidential standing and merit for the case.

The appeals court in Speech First, Inc. v. Schlissel, et al. further called the practices and policies of UMich’s BRT a “threat of punishment...to produce an objective chill.” The “chill” is cited as “the referral power and invitation to meet with students.” A referral process begins after a report is sent from the BRT to the UMich Office of Student Conflict Resolution (OSCR) or the police.

UMich and District Court Judge Linda V. Parker defended the anti-bias practices. Within Speech First, Inc. v. Schlissel, et al., UMich argues “there is no evidence in the record that a student has faced discipline for having an ‘intellectual debate.’” Parker told MLive “the university considers this (reporting) voluntary and the student has no obligation to come in...you say there is an implicit threat. I don’t see that.”

[RELATED: UMich nixes dorm speech policy in wake of lawsuit]

“I think the decision made this week by the Sixth Circuit Court of Appeals is a win for free speech,” UMich sophomore Nathan Gendich told Campus Reform. “Having many friends who have been reported to school authorities for expressing right-wing beliefs, I have always been concerned about the University’s tendencies to police speech rather than promote an atmosphere of respect and civility towards opposing viewpoints.”

Speech First, a nonprofit group “working to combat restrictions on free speech,” cited more than 150 reports of “expression of bias” that have been investigated since April 2017. These biases were seen “through posters, fliers, social media, whiteboards, verbal comments, classroom behavior.”

In the lawsuit, Speech First challenges the university’s anti-bullying and anti-harassment policy, both revised during litigation, stating “the University’s definitions of ‘bullying’ and ‘harassing’ behavior is overbroad and vague, sweeping in protected speech.”

”We are gratified that the court of appeals restored our case against the University of Michigan,” Nicole Neily, President of Speech First, told Campus Reform. “We continue to believe that the University’s policies, including the ones it tried to abandon after we filed suit, are blatant violations of the First Amendment. We look forward to vindicating our members’ rights as this litigation progresses.”

[RELATED: UMich caves after DOJ calls speech policies ‘unconstitutional’]

“I don’t believe that ‘harassment’ is properly defined,” UMich Young Americans for Freedom member Courage Ekwonye told Campus Reform regarding the policy. “I believe at the minimum that it is being loosely interpreted.”

According to UMich, biases, or “Campus Climate Concerns,” can include “actions that discriminate, stereotype, exclude, harasses or harm anyone in our community based on their identity,” and furthermore, “concerns may stem from fear, misunderstanding, hatred or stereotypes. Behaviors may be intentional or unintentional.”

“I am glad that the district court is remanding the previous injunction,” Editor-in-Chief of the Michigan Review Noah Garfinkel, told Campus Reform. ”I cannot personally say it has had a chilling effect on me. I understand and empathize with students that feel this could be misused. I also know that bias has begun to include microaggressions, and was featured in a mandatory session I had to take as a freshman called Relationship Remix. I am once again glad this will be in court and hope to hear more from the University on this in the future.”

UMich spokeswoman Kim Broekhuizen told Campus Reform that “the panel’s decision did not address the merits of the university’s existing policies, and we are confident the university will prevail. U-M is deeply committed to the protection of free speech by students, faculty, and outside speakers alike, regardless of their views.”

Campus Reform reached out to the UMich Central Student Government, which declined to comment, as well as the UMich College Democrats, which did not comment in time for press.

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